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Who Polices the Police? Not the Court of Appeal!

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The Ontario Court of Appeal in the recent case of Regina v. Harrison, 2008 ONCA 85, has given a license for police to trample on individual rights so long as the fruits of their conduct yields evidence of a crime. Under what appears to be a new form of analysis of s. 24(2) of the Charter, as long as the Crown can establish that the admission of the impugned evidence is necessary to continue the prosecution, the harm to the reputation of the administration of justice from excluding the evidence would be greater than that from admitting it, and thus, the evidence goes in and the rights go out the window.

The Charter was designed not be a suggestion but to protect society from unjust conduct by the state. Harrison will do little to protect society but in the long run will only serve to harm societal interests by inviting more incursions into privacy by state actors.

Harrison and his co-accused were operating a rental vehicle and driving from Vancouver to Toronto. While passing through Kirkland Lake, an OPP officer pulled over the vehicle because it was missing a front plate. As the officer positioned himself behind the vehicle he realized that the car was from Alberta and in Alberta it is not an offence to drive a vehicle without a front plate. The police officer admitted at trial that he had no valid legal grounds to continue the stop and search the motor vehicle.

While under detention, the officer observed certain indicia of drug transportation and upon questioning of the driver, discovered that the driver had a suspended license. The officer then arrested the driver and conducted a search of the vehicle incident to arrest.
Cocaine was found in the rear the vehicle which weighed approximately 35 kilograms and had a street value of between $2,463,000 and $4,575,000.

The trial judge found that the officer arbitrarily detained the occupants of the car and that the search of the vehicle was unreasonable contrary to s. 8 of the Charter. The trial judge found that the police officer’s conduct was flagrant in nature. However, the he refused to exclude the evidence because trial fairness was not compromised and the Charter breaches “pale in comparison to the criminality involved in the possession for the distribution of 77 pounds of cocaine…” On appeal, the Court of Appeal by a two judge majority upheld the trial judge’s decision noting that the breaches did not have a particularly serious effect on the appellant’s Charter rights and the appellant’s privacy interest in the car was low. Further, the majority noted that this was not an easy case – “far from it.” “This was a close call and one which reasonable people would disagree.” Thus, deference came into play.

The dissenting voice of Madam Justice Cronk was scathing to say the least of the analysis by the majority. Cronk J. stated, “where the evidence was obtained as a result of serious and deliberate police misconduct, including an attempt by a police officer to mislead the court about the basis for his impugned conduct, respect for the values enshrined in the Charter must take precedence and the court must dissociate itself from such misconduct. What occurred here was disdainful of the rights and freedoms protected by the Charter. Accordingly, on a proper balancing of all relevant factors in this case, I conclude that the trial judge’s decision to admit the evidence of the cocaine must be set aside. While excluding the evidence could bring the administration of justice into disrepute, on the record in this case, the administration of justice would be brought into greater disrepute by admitting it. To hold otherwise, on the facts and in the circumstances of this case, would invite the disregard of Charter rights by the police, with an unspoken ‘assurance of impunity.”

We have appropriately avoided in Canada legitimating incursions into individual rights by an “end justifies the means” analysis. The majority in Harrison dangerously crosses this border. Trial defence lawyers can take one thread of hope from this case however. We must urge trial courts to exclude evidence in similar circumstances as Harrison and argue that appeal courts will and must show equal deference to decisions to exclude when the case is a “close call”.

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